Florida Family Lawyer Blog

Many of the clients of our Fort Lauderdale and Miami divorce attorneys are shocked to learn that their soon to be ex-spouse may be entitled to a portion of their retirement or pension fund. In Florida, pension and retirement funds that accrue during the marriage must be treated as marital property and are generally shared equally. However, there are exceptions and modifications to this rule that may help you protect all or part of your retirement savings.
Florida law holds that all vested and non-vested benefits, rights, and funds that accrue during the marriage are marital assets subject to equitable distribution during a divorce. This law applies to any 401(k), pension, Individual Retirement Account (IRA), annuity, or Deferred Retirement Option Program right (DROP) that is acquired or accrues during the course of the marriage. If the court determines a pension or retirement fund is a marital asset, they will issue a Qualified Domestic Relations Order (QDRO) that instructs the plan administrator to divide the fund according to the divorce decree. The non-employee spouse is usually entitled to the same rights under the plan as the employee spouse, such as cost-of-living adjustments and early withdrawal options, and is eligible to receive his or her share of the ex-spouse's benefits when the ex-spouse is entitled to receive them.

If a party has not contributed to their retirement account since the day they were married, the account will not be considered a marital asset. Likewise, contributions made to a retirement account both before the marriage occurred and after it dissolved are the separate property of the employee who made the contributions and are not considered marital property. When determining what portion, if any, of a retirement account is not a marital asset, the courts will consider the length of any marital separation and whether marital “efforts” or earnings were use to acquire the benefits. If a party argues that all or part of his or her retirement account should not be considered marital property, they will have the burden of proving when the retirement benefits accrued.

On the other hand, if a spouse is retired and dependent on a retirement account for income, the funds may be considered income instead of assets. In this situation, the retirement account will be considered in alimony and child support decisions, but will not be divided as marital property.

The divorce attorneys in our Fort Lauderdale and Miami offices can evaluate the complexities of Florida law and help you reach the best possible outcome in the division of your retirement or pension funds during your divorce. Please feel free to contact us for a free initial consultation.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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As discussed in previous blog entries, Florida is an equitable distribution state. More specifically, the Court will divide the marital assets between the divorcing parties based upon all the facts of the case. The court begins its division analysis with a presumption that the marital assets and liabilities incurred by the parties during the marriage should be split equally, however surrounding facts and circumstances in a given divorce may alter the percentage each party receives. Assuming the marital assets are divided equally, another important issue to address is whether the definition of marital assets encompasses one spouse’s retirement accounts, IRAs, and 401k plans. The short answer is—it depends! How much of these accounts remains susceptible to equitable distribution in divorce depends largely on when they were created.

It is easy to see why division of martial property is one of the more challenging processes when going through divorce. In Florida, marital property includes any asset acquired during marriage by either spouse’s efforts. Additionally, Florida Statutes requires that a married couple’s vested and nonvested benefits, rights, and funds accrued during marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are all “marital assets” subject to equitable distribution. Therefore, all of a spouse’s retirement accounts, IRAs, and 401k plans are susceptible to equitable distribution even if they do not vest until after the parties separate. However, one important caveat stated within the Statutes itself, is that division of those assets will only result from a spouse’s employment time after the marriage but before the commencement of a dissolution proceeding (i.e., the duration of the marriage) because that is when the benefits accrue. For example, a pension plan balance prior to marriage and an increased value in the same plan subsequent to a dissolution proceeding cannot be subject to the equitable distribution of marital assets in the state of Florida. In this example, the pension owner would have the burden of establishing whether some portion of the pension benefits accrued prior to marriage.

How will the court determine the value of these accounts and what is the method of distribution? One Florida District Court of Appeal has explained that this determination generally requires complicated calculations in addition to expert testimony based on competent and substantial evidence. The preferable approach to such calculations includes reducing the fund’s present value by factoring in the contingencies of vesting, maturity, and the pension holder’s mortality. Once a final value is reached, it will then be equitably divided. In dividing a marital asset pension, however, courts have the following two options: (1) reduce the pension benefits to their present value (as previously discussed) and then order a lump sum distribution of the amount to the recipient spouse; or (2) direct that a portion of each pension payment be paid to the recipient spouse at the time of each payment. Because some pension plans may require an early withdrawal penalty, the second options appears to be more reasonable. However, some courts have chosen instead to apply the first option and simply reduce the pension holder’s interest in another piece of marital property and distribute that interest to the recipient spouse. Therefore, no early withdrawal penalties are implicated with either option.

If you are going through a divorce and have obtained many of these funds during the course of your employment, consult an attorney to consider your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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By now, many have heard a story that made national news just last month concerning a husband who while divorcing his wife demanded that she either return the kidney he donated to her or pay him $1.5 million dollars for its value. You can read more about the story here. In 1990, Dr. Richard Batista and his wife got married. In 2001, Dr. Batista donated his kidney to her. However, in 2005, Batista’s wife filed for divorce, and the proceeding is still ongoing. While Dr. Batista’s lawyer argues that her client wants the value of the kidney he donated to his wife, this issue raises a broader question concerning the division of marital assets and turns on whether a kidney should be classified as something other than marital property. Many divorce lawyers have stated that a donated organ is not a marital asset to be divided, but what exactly does that mean, and would this reasoning carry over in the state of Florida?

Like many states around the nation, Florida is an equitable distribution state, requiring that upon a dissolution of marriage proceeding, the court will distribute the marital assets and liabilities between the parties equally. As this policy suggests, this equitable division relies on the court’s determination of what may be considered marital property. In Florida, marital assets and liabilities include the following: (1) assets acquired and liabilities incurred during the marriage by either spouse; (2) enhancement in value of nonmarital assets resulting from efforts of either spouse during the marriage; (3) interspousal gifts during marriage; and (4) and benefits, rights, and funds accrued during the marriage. Florida law dictates the trial court must separately classify property as marital or nonmarital where it is not included in the 4-factor list previous mentioned. Where exactly does a donated organ fit in this scheme? If classified as marital property, then its “value” will get divided. If classified as nonmarital property, then the donated organ’s value will not get factored into any divorce settlement that is reached. Because it does not neatly fit into any one of the four categories, it is likely the trial court judge would make the ultimate classification.

The Florida courts have never faced such a tough and unique situation. If it ever does, perhaps it will follow what the New York State Supreme Court, New York’s trial court, has ultimately concluded. Just two days ago, the New York State Supreme Court marital referee Jeffrey Grob stated that it was not legal to place a monetary value on a human organ. The court held that human organs were not pieces of property to be divided like other marital property during divorce. Dr. Batista has appealed this decision.

What is to be learned from this case and its implications? Before going through a divorce, know what property is subject to equitable distribution. If you have any questions concerning what property will be divided between you and your spouse upon divorce, its best to simply consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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The economy is bad, the employment rate is plunging, and life just doesn’t seem to be getting any easier. An important issue that many recently unemployed white-collar workers may be facing is whether their current alimony payments to their ex-spouse should remain at the same rate. It’s not hard to imagine a scenario that when Husband and Wife were going through a divorce 3 years ago, Husband worked a management level position at a Finance Corporation in Boca Raton, was getting paid a high salary, and his wife was a stay-at-home mother living at the couple’s home in Fort Lauderdale. When Husband and Wife got divorced, Husband was required to pay alimony to Wife, the terms of which were set in accordance with Husband’s high-paying job at the time. But, now it’s 2009, Husband has lost his job, and because of the downturn in the economy, Husband has no employment prospects in the near future. Husband’s savings are declining at a rapid pace, and he can no longer pay the required alimony payments dictated by a three-year-old divorce settlement agreement.

At the time of divorce, the parties’ needs and abilities to pay are settled by a final judgment awarding alimony. However, a final judgment requiring one party to pay the other alimony may be modified or even temporarily suspended. A party may petition the court to modify alimony, but the moving party must show: (1) a substantial change in circumstances has occurred; (2) that the change in circumstances was not contemplated at the time the divorce settlement was reached; and (3) that the change in circumstances is sufficient, material, involuntary, and permanent in nature. In the fact situation described above, the first two requirements are easily met. Husband has lost his job and cannot find a new job, severely reducing his income – no doubt a substantial change. Furthermore, this change could not have been contemplated 3 years ago when Husband was gainfully employed. The real issue in this situation is whether the change in Husband’s circumstances is permanent enough to warrant a reduction, or at least a temporary reduction or suspension, in his alimony payments to his Wife.

Florida law dictates that a showing of substantial change in circumstances is sufficiently “permanent” when the conditions exist for one year or more. However, an important caveat to this general rule is that not all circumstances must adhere to this standard. In fact, there may be fact situations where the permanence of a situation can be proved right away. Could this just be one of those situations that warrant such treatment? A recent article made an interesting argument that with the downsize of the financial sector, it should be easier for unemployed and underemployed professionals to minimize alimony by arguing “their plunge in fortunes isn’t short-lived” and is most likely permanent in nature. That argument aside, in Florida, a temporary modification in alimony is appropriate where the court determines that Husband has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level. In fact, when such a situation arises, the Husband’s alimony obligation should be reduced to be more commensurate with his current ability to pay. Also, a court may even suspend payments temporarily if such inability to pay arises. It’s important that in these uncertain times to take advantage of what Florida courts allow.

If you are currently paying alimony payments to your ex-spouse and have lost your job and do not see any hopeful employment prospects in the future, the best advice would be to consult a lawyer concerning your ability to either temporarily or permanently reduce your alimony payments.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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In these uncertain financial times, the specific terms of a child support agreement within a divorce settlement has become even more important than before. One important factor that parties to a divorce may forget, or may not even think to mention, is payment of their child’s college education. In today’s society, undoubtedly driven by education, a college degree has become the pinnacle of entering Florida’s workforce. Recognizing this, many Floridians decide to help pay for their child’s college education upon graduation from high school. However, when a child’s parents are going through a divorce, and child support obligations are being mentioned by both parties, the question of who must pay for a child’s college education is a matter that should be discussed.

Florida statute mandates that a parent is not legally obligated to support his or her child beyond the age of 18, the age of majority, unless the parent agrees to get around this by signing a binding contract or unless some type of statutory exception applies pertaining to a child’s disability or dependency. With the statutory exceptions, a parent may be required to support a dependent child where: (1) dependency is caused by mental or physical incapacity which occurred before the child reached 18; or (2) the child is “dependent in fact,” meaning that he or she is between the ages of 18 and 19, is currently enrolled in high school, and has a reasonable expectation of graduating before 19. Absent a court order, binding contract, or these two statutory exceptions, the obligation to pay the current child support for a child, including payment for secondary education upon completion of high school, is terminated when the child reaches the age of 18.

Where exactly does that leave a child of parents going through a divorce that just graduated high school, is 18 years of age, and needs financial support from his parents to attend college in his hometown of Fort Lauderdale, Florida? As stated previously, if a child is no longer “dependent” upon his or her parents, either through age or disability, a parent simply has no absolute duty to provide a child financial support, which unfortunately includes paying or helping to pay for an adult child’s college education. If you are a parent going through a divorce, and are worried about paying for your child’s college education, the best thing to do is to bring up the topic in preliminary discussions between the parties. Although a parent is under no legal obligation to provide support a child over the age of 18, the age of most college students, it is important to note that the support agreement may require a parent to pay support beyond the age of 18. Through contract, one parent may require the other parent to pay and be solely responsible for a child’s college education, thereby obligating that parent to pay reasonable costs associated with it. The exact terms should be stipulated in the contract. If the support contract fails to address this matter explicitly, the court is unlikely to honor the request. Getting around this failure would require one parent to make a motion to the court requesting a change to the terms of the support obligations within the divorce settlement agreement to include a provision for college education support. However, the decision to grant this motion is within the court’s discretion. The wiser route would be to include such a provision within the original divorce settlement agreement binding both parties to its contractual terms.

If you are going through a divorce and are concerned about your child’s financial support for his or her college education, please consult an attorney for more information.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Support , Divorce

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In the previous post, we discussed that Florida law allows a party to a divorce proceeding to make a claim for attorney’s fees from the opposing party. More specifically, if one party makes such a request, the court will primarily consider the financial resources of both parties to make an order for one party to pay a reasonable amount to the other party for attorney’s fees, suit money, and costs. Because the relative financial resources of both parties to a divorce proceeding is the principal criterion the court examines in making this determination, I believe it is essential explore the concept of relative financial positions more fully.

Florida courts have repeatedly stated that when looking to the relative financial position of the parties, the first two questions which must be answered are: (1) does one party need attorney’s fees from the opposing party to pursue this divorce?; and (2) does the other party have the ability to pay for the other’s attorney’s fees? To make this determination, the court will require each party make an evidentiary showing of their respective assets and liabilities and make a comparison of each party’s independent financial resources. Recall from the last post that this comparison will not take into account money that a party’s family and friends are willing to share as aid. Also recall that it is not necessary that one party be completely unable to pay attorney’s fees in order for the other party to pay for them; it is only necessary that the party requesting attorney’s fees be in a substantially inferior financial position. A calculation of each party’s independent financial resources takes into account all circumstances and resources, including benefits that significantly enhance one party’s financial position, net income (and income-earning abilities), and the extent of their financial liquidity (like if the party’s assets are readily available).

Imagine a common situation in many states, including Florida. A husband and wife had been married in Fort Lauderdale for 19 years. During their marriage, the husband worked full-time making a great yearly salary while his wife remained unemployed to take care of the family. On their 19th year of marriage, husband and wife decided to get a divorce. That same year, the husband received a $100,000 bonus at work. Realizing the disparity in income between both parties and her inability to afford counsel, the wife requested attorney’s fees from her husband during the dissolution proceeding. In a similar case decided in Florida, the husband was required to pay all of the wife’s attorney’s fees and costs in the dissolution proceeding.

In another scenario, Florida courts have been reluctant to deny attorney’s fees to a requesting party simply because he or she has assets (because those assets are not necessarily readily available). For example, attorney’s fees were awarded to a former wife who was in an inferior financial position to her husband, and who would have to invade her assets to pay attorney’s fees for a dissolution proceeding. Similarly, in another case, a former wife was entitled to attorney’s fees and costs, even when all marital assets were equally distributed and the wife was awarded permanent period alimony. That court awarded the former wife attorney’s fees rather than having her invade her capital assets to pay the litigation costs because it would decrease her income. Furthermore, the husband was in a position to pay for all his fees and her fees combined out of his current income without digging into any of his own assets or investments.

It becomes clear that income-earning abilities appear to be of primary concern when making a financial comparison of the parties when one party requests attorney’s fees from the other party in a divorce proceeding. If you are going through a divorce and are a party that is in a substantially inferior financial position, it would be wise to discuss making a request for attorney’s fees with your attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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Pursuant to Florida statute, the court in a dissolution, child custody, or child support proceeding may order one party to pay a reasonable amount for the other party’s attorney’s fees. Furthermore, these fees may even include a party’s costs to maintain or defend any one of these proceedings, including enforcement or modification of support, custody or visitation. But in Florida, how does the court decide to award attorney’s fees and in what situations is it appropriate?

Awarding attorney’s fees is at the sole discretion of the judge, and in determining whether to award these fees to a party, the judge may consider the earning ability of the parties, the marital assets and liabilities each party obtained through the divorce proceeding, and those assets’ liquidity. It is important to note that in Florida applying for an award of attorney’s fees, suit money, or costs does not require additional support through corroborating expert testimony. Florida courts, through an order of attorney’s fees, ensure that both parties to a dissolution proceeding have the ability to be represented by competent counsel.

Although a judge looks to several factors when considering a motion for attorney’s fees or litigation expenses, the principal issue considered by the judge is the respective financial resources of each party. The primary elements of that issue include the requesting party’s inability to afford an attorney and the other party’s ability to pay for competent legal counsel. In Florida, courts will not order one party to pay the other party’s attorney’s fees in a divorce proceeding when both are on significantly equal footing with regard to their ability to pay their own legal expenses. This calculation does not include financial assistance that may be provided by family members or friends. However, it is not necessary that one spouse be totally unable to pay for legal expenses for the judge to require the other spouse to pay them. Furthermore, the determination of ordering one party to pay for the other’s legal expenses may also be made after the court considers the relative financial status of each party at the conclusion of a dissolution proceeding. Therefore, a spouse may not be entitled to legal fees where the “spouse in need’s” financial position was made equal to the other spouse through the award of alimony and equitable distribution of marital assets. The Florida statute which allows for the award of attorney’s fees in proceedings for dissolution of marriage, support, or child custody also requires the judge to consider other relevant factors in making his or her determination to order this award, including: (1) scope and history of litigation; (2) the proceeding’s duration; (3) each party’s merit in presenting their arguments; and (4) whether the litigation is being used as a means to harass the other party.

Other Considerations: Please keep in mind that there are several other factors the court will not look at in this determination for attorney’s fees. For example, it does not matter if one party prevails in the proceeding or if the party is to blame for the failure of the marriage (i.e., through adultery), the court will not consider these subjective factors in making its determination for attorney’s fees.

Settlement Offers: What if one party wants to settle before the proceeding gets more expensive but the other party, who will demonstrate need for attorney’s fees, wants the proceeding to continue? Well, there is no Florida case law or statute to suggest that a court will deny attorney’s fees in dissolution cases simply because one party failed to accept an offer of settlement, even if a refusal to accept was unreasonable.

Pre-marital contracts: Contract provisions, which are typically found in prenuptial agreements, which waive the right to attorney’s fees and suit money are given consideration by the court, but are not conclusive as to how the court will decide the matter. Therefore, the court considers contractual provisions along with all other pertinent conditions affecting the party’s need and ability to pay. For example, if one spouse had the other spouse sign a prenuptial agreement (a contract) before they got married, and that contract contained a provision stating that neither party would pay the other party’s legal costs in the event of divorce, the court must consider this in making its determination. However, if enforcing this provision would lead to fundamental unfairness, the agreement may not be binding and the court may exercise its discretion to award attorney’s fees.

Please stay tuned for the next post, where we will continue this discussion of awarding for attorney’s fees in dissolution proceedings.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Attorney's Fees , Divorce

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In this previous post, we discussed Alex “A-Rod” Rodriguez’s pending divorce to his estranged wife, Cynthia, and the effects of a prenuptial agreement on her request for an equitable distribution of the marital assets. And, throughout the summer, the general public was kept riveted as to what would happen next and whether they would be privy to another bitter divorce proceeding involving a celebrity in the Miami courts. But fortunately for the Rodriquez family, the general public will be disappointed. On September 19th, A-Rod and his wife settled the case before any court-room battle could take place. The probable reason: an enforceable prenuptial agreement A-Rod had Cynthia sign before the two got married.

A recent article from the Boston Herald explains that A-Rod and his wife choosing to settle their dissolution proceeding before it ever entered the Miami court system is most likely due to a premarital contract, or prenuptial agreement (the terms of which the public may never know!). In Cynthia’s petition for dissolution of marriage, she argued for an equitable distribution of all the assets, as is Florida law absent an enforceable prenuptial agreement. However, we are sure it is A-Rod’s position as expressed in the prenuptial agreement that Cynthia should not be entitled to half of his income – she wasn’t responsible for his notoriety as a baseball superstar nor did she add to what he already earned before the marriage. This was the precise reason for the prenuptial agreement. As the article rightly hypothesizes, in the divorce settlement reached, most likely guided by the terms of the prenuptial agreement, A-Rod probably gave Cynthia their multimillion dollar home, its contents, a lump sum, and a nontaxable alimony payment of $1.5 million dollars.

While it is all too easy to speculate about the details of A-Rod’s divorce settlement agreement, the one sure thing that is beyond speculation, and more of an absolute, is what the baseball start must pay in child support. Child support obligations simply cannot be contracted away in a prenuptial agreement, and if they are, that portion of the agreement will be unenforceable. The couple’s two children live and attend school in South Florida with Cynthia. In Florida, guidelines as to how much child support a parent is obligated to pay are set forth within the Florida Statutes and is based on a proportional formula dependent on the incomes of both parents and the number of children between them. Because A-Rod makes well over $10 thousand a month, Florida law will require him to pay $2,228.00 a month for the first $10 thousand plus an additional 7.5% of his total yearly income that exceeds $10 thousand. In Florida, if the combined monthly income between both parents of two children is more than $10 thousand, then the courts will take 7.5% of the total yearly income to determine proper child support payment. Therefore, as the Boston Herald article states, if A-Rod makes $25 million, Cynthia will receive approximately $1.875 million in child support, yearly. However, if there is a significant change in A-Rod’s income, whether upward or downward, the award of child support can be modified upon a showing by the petitioning party that there has been a substantial change in circumstances concerning A-Rod’s income warranting a modification in child support and that such a change in child support will not hurt the children.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Support , Divorce , Prenuptial Agreements

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It’s been six months since you have seen your husband. You want to file for divorce, but you have no idea where he is. What options are available to you when Florida law requires that you serve your husband with divorce papers, even if you can’t find him? The answer is simple: constructive service of process. In Florida, after making diligent and reasonable inquiry into the whereabouts of your husband and you still cannot locate him to serve him in person, you may “constructively” put your husband on notice of the pending suit by following the steps below, so your dissolution may proceed.

If you find yourself in the situation hypothesized above, the first step to take is to make a reasonable search entailing some of the search procedures outlined in this Affidavit of Diligent Search and Inquiry. Next, file an Affidavit of Diligent Search and Inquiry along with your Notice of Action for Dissolution of Marriage. The affidavit, which includes a checklist of places you can look to gather information to locate your husband, ensures that you have made a serious effort to find your husband’s location. Both the affidavit and Notice of Action for Dissolution should be filed in the circuit court in the county where your petition for dissolution of marriage is filed. So, if you petitioned for divorce in Fort Lauderdale, Florida, you would file your affidavit and notice with the circuit court in Broward County. If the court grants you publication of process, the next step would be to publish notice of the dissolution proceeding once a week, for four (4) consecutive weeks, in a newspaper that is published within the county – here it would be a Broward County newspaper such as the Fort Lauderdale Sun Sentinel. After completing this process, the dissolution may proceed, with or without your husband. However, once the divorce is resolved, other problems may rise when you cannot find the father, such as notifying him of your intent to relocating your child more than 50 miles away from your current address.

Assuming your husband never showed up to the divorce proceeding and the court finds it is in the best interest of the child to do so, you would most likely be awarded full residential custody of your child. If that award granted no visitation rights to the father, your husband, then you would also most likely be able to move more than 50 miles away without telling him because he was not granted visitation rights to begin with.

However, in a different scenario where the father was involved in the divorce and was granted visitation rights with the child, and you decide to move from Fort Lauderdale, Florida to Tampa, Florida, which is more than 50 miles away, you would have to serve your husband with notice of your intent to relocate.

Recently, a visitor to our blog posted a question as to what process should she follow if after the father was initially granted visitation but since that time has taken off and the wife is unable to locate the father. In Florida, there is no specific statute determining what proper notice consists of when dealing with service of a notice to relocate upon the father who can’t be found, but it may be in your best interest to rely on what is the accepted practice for constructive service (service by publication) in family law, like in a petition for dissolution of marriage (see the example mentioned in the previous paragraph). This problem may be avoided if the visitation agreement contains a provision including an address for both the mother and the father, which serves as the official address to provide notice to the other party. By stipulating in advance what is the proper address to provide notice, this problem is solved before it even starts.

If you wish to relocate more than 50 miles away from your current address and your husband does have visitation rights, but you have not seen or been able to locate him after diligent search and inquiry, your best bet would be to consult an attorney to consider your options for possible constructive service.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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If you are getting divorced in the state of Florida, the courts follow a rigid guideline in the equitable distribution of all marital property. What does that really mean? Simply put, all assets and liabilities determined to be “marital,” or shared between both husband and wife while married, are assessed and then distributed evenly to both parties after the dissolution proceeding. But this begs the question: What about my non-marital assets, or assets that will not be factored into the court’s equitable distribution analysis? Because Florida distinguishes between marital and non-marital assets, if a wife believes that some piece of property she acquired before marriage should not be considered in the distribution of marital property, it is her obligation to show the court why that asset is a non-marital.

Florida courts generally presume that all assets and liabilities incurred after the exact date you get married are marital for purposes of equitable distribution in a dissolution of marriage proceeding. However, if you are a spouse with the premarital property and feel your husband is not entitled to share in that asset, look to the example mentioned above, you can defeat this presumption by a showing of why the assets and liabilities are non-marital. Because the division of assets and liabilities is one of the major concerns when couples are going through a divorce, it is a great idea to draft a list of all assets and liabilities and label them either marital or non-marital before the dissolution proceeding begins – this could save you a lot of time later on. To help you and the courts decided categorization, the Florida Legislature has enacted a statute that creates a list of assets and liabilities that are considered marital or non-marital.

Martial assets and liabilities include: (1) assets and liabilities incurred during marriage, either individually or both spouses; (2) increased value and appreciation of non-martial assets due to the efforts of either party during the marriage or because marital funds contributed to that increased value; (3) gifts one spouse gives to the other during that marriage; and (4) all vested and non-vested benefits, rights, and funds that came due during the marriage (including retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans). It is also presumed that all real and personal property held as tenants by the entirety is marital, regardless of whether the property was purchased before or during marriage.

Nonmarital assets and liabilities include the following: (1) assets and liabilities incurred before you got married; (2) assets acquired individually by either spouse by non-interspousal gift, bequest, devise, or descent, or any exchange for these assets; (3) all income received from non-marital assets during the marriage unless that income was used or relied on by the spouses as a marital asset; (4) assets excluded based on a valid written agreement made by the parties (think: pre-nuptial agreement!); and (5) liabilities incurred by one spouse as a result of the other’s forgery or unauthorized signature of that spouse’s name.

In Florida, all assets obtained during marriage will be considered marital until the date the parties enter into a valid separation agreement (that may include a different date to consider) or the date a petition for dissolution of marriage is filed with the court. If you are in the beginning stages of a divorce, consult with an attorney to know what your rights are in regards to your marital and non-marital property.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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The awarding of child custody is of prime concern to parents going through divorce. In Florida, the custody of your child is determined by seven simple words: “best interest and welfare of the child.” While it is the parents who initiated the divorce, from the court’s point of view, it is often the rights of the child that dictates child custody determinations. What if you are the parent who is better suited to support the child financially? Does this give you an advantage in obtaining residential custody of the child or children? In Florida, the fact a child would be more financially secure with one parent as opposed to the other parent is not a controlling factor in determining custody rights.

It’s not hard to consider a situation where spouses are going through divorce, they have children, but one parent makes substantially more money than the other. Take, for example a situation where the father is an executive of a corporation with an annual salary in excess of $250,000.00, and the mother is a homemaker who works really hard but does not earn her own income. In an economically driven society, some tend to think that the more money you make, the better you will be able to provide for the best interests and welfare of your children.

The truth is, even though one parent may bring home more money than the other, in most cases, both parents are still able to provide for a child’s reasonable needs. And although money is important in raising a child, especially in recent years, the courts also look to a parent’s ability to provide for a child’s personal, emotional, and social welfare as well as providing for a child’s material welfare.

If you are a parent going through a divorce, but know you make less money than your spouse, there are other important factors to consider in the issue of determining custody. Rather than spending time worrying about your financial situation, spend time detailing the factors the court will consider, such as: (1) character and moral conduct; (2) mental health; (3) the proposed home environment for the child; (4) character of others living in the proposed home of the child; (5) ability to maintain continuity in the child’s home; (6) parent’s work schedule; (7) and the effects, if any, that an interracial marriage may have on the child. And while no single factor alone is indicative of how the court will rule, it’s important to look at all of them and plan accordingly. Together, these factors comprise the analysis by which a court will determine what is in the best interest of the child when deciding the issue of residential custody.

In such cases where there is a significant disparity of income between one parent and the other the court will often mitigate that difference with awards of child support and alimony.

If you need help discussing the custody issues in your divorce, consult an attorney.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce

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When Florida residents think about alimony, the most common type that comes to mind is what is termed “permanent alimony.” Permanent alimony, however, is fundamentally different and does not serve the same purpose as “rehabilitative alimony,” which allows a spouse to regain financial independence after divorce. In fact, the court may even grant a combination of both types

Consider this: ten years ago, you graduated from University of Miami, top of your class, and you were well on your way to earning your degree to become a nurse anesthetist. But, before you could finish, you got married and made the decision to put your education and career path on hold to raise a family. You wouldn’t change that decision for the world, but now, it’s ten years later, your marriage has ended, and you have no way to support yourself, having relied on your spouse for generating all of the family’s income. Ignoring your “limitations,” you take control by going back to finish school and enter the work force. In Florida, the court may grant rehabilitative alimony for a limited period of time to assist you in regaining yours status as a self-supporter.

Rehabilitative alimony forces one spouse to pay for the other to obtain a skill, education, or rehabilitation so that he or she can eventually support his or her self – an ability they lost or never had before or during the marriage. If you seek rehabilitative alimony, it is important that during the dissolution proceeding you present detailed evidence demonstrating the cost of completing your education, your prospects of future employment, and the amount of time you will need to obtain the income you need. This “plan,” must be credible and adequate, so it is important to make it as accurate as possible.

In Florida, there is an important limitation on rehabilitative alimony – it does not act as a substitute for unemployment compensation or retirement benefits, but lasts only until the receiving spouse can be sufficiently trained for employment and no longer relies on the other spouse’s funds for support. Take the opening hypothetical, for example. You have presented to the court, during your divorce proceeding, a plan that includes going back to college for two years to earn your nursing degree including an additional year to find the right job that will be well-compensated. Taken together, the court may award rehabilitative alimony for up to 3 years from your ex-spouse.

To discuss the need for rehabilitative alimony during your dissolution proceeding, or to create an adequate rehabilitative alimony plan to present to the court, please consult an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Alimony , Divorce

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In Florida, the equitable distribution statute mandates that a court must equitably distribute the marital property of parties to a divorce action. This generally means that each party will get half of the marital assets regardless of fault. Furthermore, the parties to this action do not have to specifically plead or request equitable distribution of all marital assets, it is presumed. Therefore, a trial court is required to divide marital assets and liabilities equally between spouses, unless the court makes a finding which supports an unequal distribution. While an equitable distribution presumption is the court’s starting point, Florida provides a list of factors that must be considered to determine if an unequal distribution of property is justified. Interestingly enough, the statute does not list marital fault as a factor to be considered in effecting an equitable distribution.

The factors a Florida court looks at to determine whether marital assets should be equitably distributed include: (1) how much of a contribution each spouse makes to the marriage (which includes care and education of the couple’s kids or work as a homemaker); (2) each party’s economic position; (3) how long the marriage has lasted; (4) whether the educational goals of either spouse has been interrupted; (5) whether one spouse has personally contributed to the other spouse’s career or educational goals; (6) whether one spouse wants to keep assets in their same form without any interference; (7) each spouse’s contribution to acquiring, enhancing, and production of income, as well as the improvement of both the marital and nonmarital assets (8) whether one spouse wants to keep the marital home as a residence for any dependent children; (9) whether either party intentionally dissipated, wasted, depleted, or destroyed marital assets after filing for divorce or two years before filing for divorce; and (10) all other factors needed by the court to determine a fair and equitable distribution.

Martial fault, although unlisted within the Florida statute, may play a part in the distribution of your marital assets. It is not listed within the statute because distribution based on one spouse’s “fault” would essentially reward the innocent spouse and punish the offending spouse. According to the Florida Supreme Court, the purposes of equitable distribution is not to punish a philandering spouse overturning a trial court’s award of 97% of the marital assets to a wife whose husband committed adultery. However, showing evidence that one spouse has cheated on the other is relevant when it demonstrates that the adulterer has depleted marital resources. For example, one spouse using the couple’s marital funds to further his or her adulterous behavior can be used against them in a court’s determination of equitable distribution. A trial court can even assign the depleted funds to the adulterous spouse as part of that spouse’s equitable distribution. See Romano v. Romano, 632 So.2d 207 (Fla. 4th DCA 1994). A spouse who wishes to assert this ground must demonstrate the causal connection between the other spouse’s adulterous misconduct and the couple’s financial circumstances. This may prove to be an advantageous loophole for some!

For more information about Florida’s equitable distribution of marital assets, please consult an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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Christy Brinkley aside, it is no doubt that the rich and famous continuously seek privacy when going through a divorce. In Florida, however, the rich and famous are not the only people who want to seal their court records during a divorce proceeding. Because Florida is subject to “sunshine laws,” all civil court documents are generally made public absent extraordinary circumstances. The Florida Supreme Court has stated that parties seeking dissolution of their marriage are not entitled to a private court proceeding because they are required to use the judicial system. See Barron v. Fla. Freedom Newspapers, Inc., 531 So.2d 113, 119 (Fla. 1988). However, the Court has carved out some noticeable exceptions.

Not all family law proceedings are made public. Florida, as a matter of public policy, has certainly made specific civil proceedings confidential, such as adoptions, actions to determine paternity, and juvenile proceedings. And while some states, like California, have taken the extra step to limit public access to divorce proceedings, Florida has not taken that stance finding that a presumption of openness must apply to dissolution proceedings in the same way it applies to other civil proceedings. Furthermore, if you find yourself going through a public divorce, even an agreement between you and your soon-to-be ex-spouse to keep the records private cannot overcome this presumption because parties seeking dissolution of marriage are simply not entitled to private proceedings.

I know what you’re thinking – is it impossible to have my divorce proceeding records sealed? Although it may seem that way, the Florida Supreme Court has stated that closure of court records may occur when it is absolutely necessary to comply with well established public policy that has been laid out in the Florida Constitution, statutes, rules, and case law. As it pertains to dissolution proceedings in Florida, sealing such court records have been necessary to avoid substantial injury to innocent third parties, oftentimes children, when substantial compelling circumstances have been demonstrated. It is intended that this exception be applied to protect the interest of minor children from offensive testimony and to protect children in a divorce proceeding, in general. The party wishing to seal the records has the burden to demonstrate that closure is needed to protect the child.

If you wish to seal your dissolution records, you have to make a request to the circuit court in the form of a written motion, such as a “Motion to Make Court Records Confidential.” This motion must: (1) identify the exact records you wish to make confidential without revealing the confidential information and (2) explain your basis for making these records private. In Florida, any court record that is subject to this motion will be treated as confidential until a ruling by the court has been made. It should be noted, however, that keeping your public dissolution proceedings private in Florida is an extremely difficult burden to overcome and judges have discretion in their decision to grant confidentiality. If you feel you have a strong reason to seal your records, consult with an attorney to discuss your full options.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Divorce , Divorce Records

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Does Florida even allow custody and visitation rights for a dog, a cat or other pet? The short answer to that question is no (see Bennett v. Bennett below); family pets are treated as property, which taken together with other marital assets, must be divided equally (Florida is an equitable distribution state). For instance:

It was your fifth year as a married couple, and to your surprise, your husband brought home a puppy named Spot. Over the next several years, both you and your husband walked the dog, fed him, and played with him. In return, Spot provided both of you with love and affection, and even protected you on the mean streets of Miami. In fact, you all grew quite attached to one another. However, you and your husband are now going through a divorce and you have moved to Fort Lauderdale. In addition to asking the Court to divide the marital assets, you also want the court to determine who gets custody of and/or visitation with Spot. Is there any fair way to do this when both of Spot’s owners are going their separate ways?

It was Florida’s landmark decision in Bennett v. Bennett, which held that although “a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property.” 655 So. 2d 109, 111 (Fla. 1st DCA 1995). In that case, the trial court awarded “custody” or the parties’ dog to the husband and gave visitation rights to the wife. After the judgment was rendered, the wife filed a motion for a change in custody, arguing that her ex-husband was interfering with her visitation rights. And although the trial court granted the wife’s motion, effectively giving her visitation with the dog every other month, Florida’s First District Court of Appeal reversed it in Bennett v. Bennett. This decision put a “nail in the coffin” to the idea that a family pet could garner custody and visitation rights (like a child) after its owners’ divorce. In line with this decision, because a dog is personal property, a Court must award possession of the animal pursuant to the dictates of Florida’s equitable distribution statute. The Bennett court reasoned that this is the appropriate outcome because no authority in Florida case or statutory law enables a trial court to grant custody or visitation pertaining to personal property.

It is true that several other states have given family pets a “special status” within divorce proceedings; the Bennett court believed this course was “unwise.” According to the Bennett court, in Florida, the courts are already overwhelmed with pending family law matters involving humans (custody, visitation, child support, etc.), doing so with animals will prove even more burdensome by adding to the already overworked and understaffed court system.

To go back to our hypothetical from the introduction, it would be wise to circumvent the court when establishing custody rights to your pet. To be safe, before the conclusion of your divorce trial, create a written agreement laying out custody of and visitation with Spot. If you leave the matter in the hands of the court, Spot will just be considered another piece of property that needs to be divided.

If you are going through a divorce and are concerned about the custody of your pet, consult an attorney to consider your options.

Update: NBC'sThe Today Show just ran a very interesting story about this topic. If you are interested in learning more, please click here.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Pet Custody

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In a previous post we discussed formulating an agreement between you and your ex-spouse when you want to move your minor child more than 50 miles away after residency has been determined in dissolution of marriage proceeding (your divorce). In that example, we said that the primary residential parent is living in Fort Lauderdale, and she wanted to move with her child to northern Florida. Let’s use that same example. However, instead of formulating an agreement, mom realizes she will never be able to come to a complete, written agreement with her ex-spouse concerning the relocation of her child. Rest assured, there is another avenue at her disposal affording her the opportunity to legally relocate to northern Florida with her child.

In Florida, unless there is a written agreement between the parents concerning the relocation of their minor child, a mother who is entitled to primary residency of this child is permitted to take other steps to ensure her notification to the father is proper. Mom’s first step must be to notify the other parent of the proposed relocation of the child’s principal residence by preparing a Notice of Intent to Relocate. Here is a sample one.. Such notices must conform to the Florida Statutes, therefore, please look to the our sample to ensure proper compliance with Florida laws.

To encourage resolution without court involvement, Florida provides that the mother should first serve the notice upon the former husband. The mother should only file with the court if her ex-husband objects. When first serving it upon the father, her official notice should include a Certificate of Filing Notice of Intent to Relocate, which certifies the date it was served. And finally, absent a pending court action, the mom can serve this notice via certified mail, restricted delivery, with a return receipt requested.

After your notice has been served, the non-residential parent has 30 days to object. If the non-residential parent fails to object within this time-frame, the relocation is permissible. However, if the non-residential parent, the father in this case, does object within the 30 days, he must state the specific reasons to deny the relocation, which must include the amount of involvement he has in the child’s life. It is at this point, the court must get involved. If the father files an objection, the mother now must rely on the court, and she has the burden to initiate court proceedings to obtain the court’s permission to relocate the child.

If you are thinking about relocating your child more than fifty miles away after a dissolution, please contact an attorney to consider all your options.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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If you watch television, pick up a newspaper, or listen to the radio, you have heard at least one reference to the divorce between Alex “A-Rod” Rodriguez and his estranged wife, Cynthia. As their divorce plays out in the public eye, the real battle is taking place in the Miami-Dade Circuit Courts. Cynthia filed her petition for dissolution of marriage from A-Rod in state court in Miami. She is seeking “equitable distribution” of all assets acquired during the marriage. This sum adds up to around half of the $120 million A-Rod earned during the five and a half years of their marriage. And because Florida is an equitable distribution state, she just may be entitled to half of all assets obtained during the marriage. However, there is one glaring problem – Cynthia signed a prenuptial, or antenuptial, agreement one month before their wedding. If valid, Cynthia may only be entitled to the terms of that agreement, which are still unknown.

This case suggests that Cynthia will probably seek to invalidate the prenuptial agreement in order to get as much money as she can – the same way Ivanna Trump did in her divorce against Donald Trump in 1990. To invalidate this agreement, the Miami court will focus on whether the prenuptial agreement was a valid contract. This includes determining if both parties honestly divulged all of their assets that they brought into the marriage, if both parties entered into the agreement with full knowledge of the terms of the prenup and signed it on their own volition, and if the agreement was signed well in advance of the wedding. The reason to penetrate this agreement is simple. When and if invalidated, Florida allows Cynthia entitlement to half of the marital assets via Florida’s equitable distribution statute, which we can assume is much more than the prenuptial agreement will provide.

Although the court in Miami will ultimately decide the outcome of this case, the public will soon be able to make their own conclusions when and if the documents are made public record. Florida is subject to “sunshine laws,” which means that all court documents should be made public absent extraordinary circumstances. This may be another point of contention in the divorce, as well. The thing to take away from this divorce is this: if you decide to enter into a prenuptial agreement, prenuptial agreements can be invalidated unless they are executed properly.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Divorce , Prenuptial Agreements

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When you are divorced in Florida and you are the primary residential parent to a child and your ex-spouse has visitation rights, relocating your child to a new principal residence more than 50 miles away from your previous residence has many implications for you and every other person entitled to visitation with your child. Failure to comply may lead to adverse results. Take, for example, this scenario:

You have been divorced for 3 years, you have a minor child, and you are the primary residential parent by court designation. Since the divorce, you have lived in the same house in Fort Lauderdale, Florida, but now you feel it’s time to move. Whether moving for a new job, a new location, or a better investment opportunity, you have decided to pick up and move you and your child to northern Florida. How do you go about relocating with your child without running afoul of the law? One of the most efficient ways of handling relocation is crafting a relocation agreement with the secondary residential parent.

Create a relocation agreement. The primary residential parent, and the secondary residential parent may enter into a written agreement before moving more than 50 miles away. However, the agreement must: (1) consent to the relocation; (2) define visitation rights for the non-relocating parent; and (3) describe any transportation arrangements that may be necessary for proper visitation. If you have an existing court order that relates to the child’s primary residence or visitation, you must seek ratification of the agreement by court order, which will evaluate the best interest of the child. Furthermore, a relocation agreement may address the added cost to the non-relocating secondary residential parent for travel expenses related to visitation with the child.

While there are other avenues to follow when relocating more than 50 miles from Fort Lauderdale, or any other Florida town, a relocation agreement may be the best method for resolving a potentially thorny matter.

For more information about relocation agreements, or if you need assistance drafting one, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Child Custody , Divorce , Relocation of Child After Divorce

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In Florida, both parents have a legal duty to support their child, before and after divorce. However, when a marriage ends in divorce and children are involved, child support issues may arise. For whatever reason, whether it be out of spite, economic hardship, or ignorance of the child support order, there exists a real possibility that child support may not be timely and adequately paid. If your former spouse has failed to pay child support, there are a variety of enforcement mechanisms available to you.

Any time a former spouse has failed to pay child support, the first thing you want to do is notify the former spouse in writing as to their failure to pay. If the former spouse continues to be delinquent in their payment of child support the next step is to contact the Florida Department of Revenue at State of Florida Child Support Enforcement Website. They have numerous methods to enforce payment of court ordered child support including the following:

Suspension of Licenses: A teaching certificate or professional license may be suspended or denied because of a delinquent child support obligation. Other licenses or registrations, like fishing, driving, and hunting licenses may also be suspended or denied because of a delinquent child support obligation. If this remedy is employed, the license may only be reinstated when the delinquency is paid, a written agreement is reached, or a court grants relief.

Liens: Noncustodial parents who owe past-due support may have liens placed on their property by the Department of Revenue. If the past-due support is over $600 a lien may be placed on the obligor’s motor vehicle.

Intercept/Seize Assets: Unemployment compensation benefits may be intercepted to collect delinquent child support being enforced by the Department of Revenue. The Department may also intercept federal income tax refunds to obtain payment of past due child support. Furthermore, a Florida lottery prize of more than $600 can be transmitted to the Department when outstanding child support is due.

Contempt of Court: If a noncustodial parent does not pay his or her support on time, it violates the court’s support order issued after the dissolution of the marriage, and a judge can find the noncustodial parent in contempt of court. The judge may require that parent to pay the money owed. If he or she still fails to pay, the noncustodial parent may go to jail.

In addition, for more direct and timely action without having to deal with the sometimes slow bureaucracy of government, you can hire an attorney and they can file a Motion for Contempt/Enforcement of Child Support Order.

For whatever course you deem appropriate, it is recommended you attain a family law case history of your matter. This will detail the terms of the child support order and the payment history for your case. To attain a family law case history, simply contact the clerk of the court for your county, ask for the family law division, and request a family law case history.

For more information about enforcing your spouse’s delinquent child support payments, contact an attorney.

Posted by Bradley H. Trushin | Permalink | Email This Post

Posted In: Child Support , Divorce

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After a divorce, the parent (father or mother) who is not living with the child is the noncustodial parent. Both parents, however, have a legal responsibility to financial care for the child. The custodial parent is the father or mother or caretaker with whom the child lives and is responsible for the child's basic needs.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Child Custody , Divorce , Glossary of Terms

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The payment of child support in Florida and the right to visitation of your children are not reciprocal rights, just because a spouse fails to pay court-ordered child support does not mean the spouse with primary custodial rights can simply withhold visitation as a punishment for the other spouse’s failure to pay child support. In Florida, parents must comply with court ordered visitations.

Picture this – you are a divorced woman, you have a son who is 10 years old, you collect child support and alimony from your former husband whom you share visitation rights with. One day, your spouse decides to stop paying child support. What do you do? I know your first instinct may be to withhold visitation rights until he pays up, right? WRONG! Although this may seem perfectly logical and may actually induce payment in some situations, in Florida, this is strictly prohibited. Don’t fall into the trap, or the court may order the custodial parent to pay reasonable court costs and attorney's fees incurred by the noncustodial parent to enforce their visitation rights or make up improperly denied visitation.

Other sanctions the court may impose on a custodial parent for failing to abide by a court-ordered visitation schedule includes: 1) You may be ordered to attend parenting classes; 2) You may be required to conduct community service; 3) You may be ordered to pay the travel costs of the non-custodial parent if they reside further than 60 miles away; 4) The court may alter the custody arrangement changing rotating custody, the primary residence of the child, and even alter primary custody of the child upon a petition by the noncustodial parent, only if such a ruling is in the best interests of the child; or 5) You may be ordered by the court to undertake some other type of sanction left to the discretion of the judge.

The lesson to be learned is, don’t upset the apple cart! In Florida, by withholding visitation from a non-custodial parent, even if that parent has failed to pay child support, you are exposing yourself to a number of potential sanctions that will cost you more money, may result in spending more of your time, and may also result in a reduction in your own child visitation rights.

I know what your thinking – HOW UNFAIR! And you may be right, but there are numerous remedies in Florida for deadbeat parents. We will discuss such remedies in our next entry. Stay tuned!

For more advice on the appropriate steps to take consult with an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Child Custody , Divorce

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In today’s society, prenuptial agreements get a bad rap. When we hear “pre-nup,” we think “Oh no! Another celebrity marriage is ending.” However, prenuptial agreements, also known as antenuptial agreements, may be a useful way to establish the rights and liabilities upon the termination of a marriage by death or dissolution. Here is a sample prenuptial agreement. A dilemma arises because of the implicit question of distrust which may be aroused by entering into an agreement contingent upon the break-up of the marriage. This dilemma is made even worse when typically, a prenuptial agreement is made at a time in a relationship where a couple is at their happiest and most blissful stage of their relationship, right before the wedding.

Given this dilemma, how does one bring it up without causing your spouse to starting questioning the strength of your relationship? Even though it may be difficult to approach the subject it may be very necessary to do so. There are circumstances in which prenuptial agreements are critical, for instance, when the rights of children from a prior marriage are at stake or when there is a vast disparity in the financial resources of parties.

In crafting a prenuptial agreement there are certain consideration to keep in mind:
The right circumstances. The facts and circumstances surrounding the execution of a premarital agreement may compel a court to set it aside. An example of this includes if it was executed days or hours before the wedding, after all the wedding and honeymoon plans have been made. The court may construe such circumstances as coercive and later invalidate the prenuptial agreement.

The right agreement. If you want to enter into a prenuptial agreement, the best plan of action would be to diligently disclose all your assets and liabilities as part of any agreement. This would mean attaching a schedule that disclosed all your assets. Florida statutes do not require you to disclose your assets if you enter into this agreement before you get married, but divorce courts will not enforce premarital agreements when there is no financial disclosure.

Guidelines for your agreement. Things to ask yourself: Is the agreement fair and reasonable in consideration of the relevant factors at the time the agreement was executed? Was there full and frank disclosure of all assets, or at least a general approximate knowledge of the extent of the property ownership? Was the agreement entered into voluntarily (each party should have independent counsel to help support their considerations and avoid conflict of interest)? A waiver of alimony cannot be modified. A husband cannot be released from his obligation to support his wife as long as the marital relationship exists. Child support usually cannot be waived by either spouse. Make sure it’s a valid agreement: it must be written, signed, and acknowledged before two witnesses.

If you have any concerns about drafting a prenuptial agreement or your prenuptial agreement, please contact an attorney.

Posted by Daniel Louis Koch | Permalink | Email This Post

Posted In: Divorce , Prenuptial Agreements

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Most divorces tend to focus on the “blame game.” For example, “My spouse cheated on me!” or “My spouse has deserted me!” All you have to do is look at the headlines in the newspaper. Most stories focus on the adulterous affairs of a celebrity spouse. Does Christie Brinkley or A-Rod ring a bell? Yet, is the question of which spouse had the affair relevant for the purposes of filing for divorce?

In some states, there must be a legitimate reason to file for divorce. Florida takes a different route, neither spouse needs to be at fault for a dissolution of marriage proceeding to be initiated. Florida is a no-fault state, and unlike other states, in Florida there is no waiting period to initiate proceedings when fault is absent.

As long ago as 1948, the Florida Supreme Court recognized the wisdom of divorcing husbands and wives who no longer wished to remain married to each other, regardless of fault. In Florida, if you want a no-fault divorce, you must assert that it is “irretrievably broken” and the to test is determine whether the marriage is irretrievably broken, for whatever reason or cause – no matter who is “at-fault” – is whether the marriage relationship is no longer viable.

The court will also look at other factors. Is reconciliation impossible? Whether as a matter of fact, has the marriage ceased to exist? If you want a divorce in Florida, the court considers your state of mind above all else. Common reasons that have been accepted by the court include: no love, no companionship and no home life which have caused parties to drift apart or simply make the couple unsuitable for each other. In fact, stating “I don’t love him or her anymore and I don’t want to stay married” should be enough evidence for the court.

But beware! Although fault of one party is not needed for the dissolution of the marriage itself, it is a factor the court may consider in determining alimony, equitably distributing marital assets and liabilities, determining parental responsibility, and awarding attorney’s fees. So, although fault isn’t important to start a divorce proceeding, it may be important when the marriage is over.

For more advice on filing for divorce, or divorce in general, please contact an attorney.

Posted by Douglas Schapiro | Permalink | Email This Post

Posted In: Divorce , Equitable Distribution

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A recent article has stated:

“When couples undo their "I do's" and go their separate ways, women who took their husband's name when they married may find themselves with complex decisions to make. These involve children, parents, careers -- and a sense of identity.”

Marilyn Gardner, Christian Science Monitor, Friday, June 13, 2008. See the article "After Divorce, A New Name Symbolizes a New Life." During a divorce, the last thing a wife may think about is her maiden name. But when it’s over, it’s one of the first!

In Florida, a wife may seek a restoration of her maiden name or a former married name in a dissolution of marriage proceeding. The request for change of name must be alleged in the wife's pleadings. If the wife fails to make the allegations, she must seek leave of court to amend her pleadings, which in Florida, is liberally granted.

The easiest and most time-saving way for a wife to change her name is to include it with a divorce. It not only saves time, but it also saves money if she wishes to restore her former name. Because a wife takes the husband’s name, she is the only party in a divorce who can request that her maiden name be restored. However, there is no reason why a woman’s failure to assert the right upon her marriage would prevent her from doing so later.

For more information on restoring your maiden name during a divorce, contact an attorney.

Posted by Koch & Trushin | Permalink | Email This Post

Posted In: Divorce

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